TaxTMI 
TaxTMI 
2021 (1) TMI 223
X X X X Extracts X X X X
X X X X Extracts X X X X
....Tribunal requires to be rectified to the extent of the amount of penalty mentioned in paragraph 25 by correcting as Rs. 60,000/- instead of Rs. 60,00,000/-. 12. Further, the appropriation of the Rs. 1,00,00,000/- deposited by the Applicant/ appellant during the investigation against the duty demanded from the importers be set aside." 3. In regard to the appropriation of Rs. 1,00,00,000/- deposited by the applicant during the investigation, the following facts have been stated in the paragraphs 8 and 9 of the application; "8. This Hon'ble Appellate Tribunal has allowed the appeal of the Applicant/ Appellant and penalty on the Applicant/ Appellant is set aside. However, no findings are recorded qua the appropriation of Rs. 1,00,00,000/- deposited by the Applicant/ Appellant during the investigation against the duty demand from the importers. 9. It is submitted that the Applicant/ Appellant had disputed the appropriation of the said amount of Rs. 1,00,00,000/- both in the appeal and in the written submissions filed by the Applicant/ Appellant pursuant to the liberty granted by this Hon'ble Appellate Tribunal. The appropriation of said Rs. 1,00,00,000/- is ex-facie invalid and w....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n to the appellant to redeem the same on payment of fine of Rs. 92,58,000/- and duty of Rs. 2,54,100/- with interest. The Commissioner also seized Indian currency of Rs. 3,19,400/- under section 121 of the Act and imposed penalty of Rs. 92,58,000/- under section 114A on the propriety firm of the appellant and Rs. 92,58,000/- under section 112(b) of the Act on the appellant. The Commissioner also appropriated Rs. 4,89,554/- towards the demand. 8. Feeling aggrieved by the said order passed by the Commissioner, the appellant and the firm filed two appeals before the Customs, Excise and Service Tax Appellate Tribunal, the Tribunal, being Customs Appeal No. 72 of 2011 and Customs Appeal No. 85 of 2011. These two customs appeals were finally decided by the Tribunal on April 27, 2016. The Tribunal held that since the entire duty was deposited with interest and 25 % of the duty towards penalty, the confiscation of goods and currency was not sustainable in law and was, accordingly, set aside. 9. Pursuant to the aforesaid order dated April 27, 2016 passed by the Tribunal, the appellant by a letter dated February 01, 2017 claimed refund of Rs. 1,00,00,000/- deposited by the appellant during....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... No.C/A/51307-51315/2016-CU[DB] dated 27 April, 2016 has held that the duties having been deposited along with interest and 25% of penalties the imposition of balance penalties upon the said M/s Orbit Gold is not justified. Inasmuch as the proceedings have been held to be concluded in the earlier set of proceedings, the imposition of penalty vide the present impugned order cannot be upheld. The same are accordingly set aside and their appeals are allowed." 12. Shri P D Shah assisted by Shri Nishant Mishra learned counsel for the appellant made the following submissions in support of the application; (i) Customs Appeal No. 70351 of 2019 was filed by Mukesh Mahesh Kumar Kothari to assail the order dated October 18, 2018 passed by the Commissioner. This order had not only imposed penalties upon the appellant and the firm but had also appropriated an amount of Rs. 1,00,00,000/- deposited by the appellant during investigation. Specific grounds, namely, O,P,Q and R had been taken in the appeal as to why this amount could not have been appropriated and the appellant was entitled to refund of the same, but there is no consideration of this submission in the order of the Tribunal; (ii)....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ectorate of Revenue Intelligence and during the course of investigation, the appellant deposited Rs. One crore by letters dated May 15, 2009 and May 18, 2009. Pursuant to the show cause notice dated February 02, 2010 that was issued to the appellant, an order dated January 31, 2011 was passed by the Commissioner confiscating the goods with an option to redeem the goods on payment of fine. The Commissioner also seized the Indian currency and imposed penalties upon the appellant and the firm. The customs appeals filed by the appellant and the firm before the Tribunal to assail the aforesaid order dated January 31, 2011 passed by the Commissioner of Customs were finally decided on April 27, 2016. The confiscation of goods and Indian currency was held to be bad in law. It is as a consequence of this order passed by the Tribunal, that the appellant filed an application for refund of the amount of Rs. 1,00,00,000/- that was deposited during investigation and Rs. 3,25,000/- towards the pre-deposit for filing he appeals. 17. During pendency of these two customs appeals a show cause notice dated November 12, 2013 was issued to the appellant to explain why the amount deposited by the appell....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d and the same is reproduced below : "35C(2) The Appellate Tribunal may, at any time within six months from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1) and shall make such amendments if the mistake is brought to its notice by the Principal Commissioner of Customs or Commissioner of Customs or the other party to appeal. Provided that an amendment which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the other party, shall not be made under this sub-section, unless the Appellate Tribunal has given notice to him of its intention to do so and has allowed him a reasonable opportunity of being heard." 22. A bare perusal of the aforesaid sub-section (2) of Section 35C(2) of the Act indicates that the Appellate Tribunal may, with a view to rectify any mistake apparent from the record, amend any order passed by it under sub-section (1). Sub-section (1) provides that the Appellate Tribunal may, after giving the parties to the appeal, an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or annulling ....